In the middle of the epic prorogation battle at the Supreme Court, we ask what's at stake: for the government, for Brexit, for the constitution and for democracy. Is this a case of legal precedent, common law practice or higher constitutional principle? Is the UK constitution becoming more European in the act of leaving the EU? And what are the things lawyers on neither side can say? Plus we ask how Jo Swinson's case for revoking article 50 is going and we discuss whether we could really have a 2nd referendum without another general election. A packed episode! With Catherine Barnard, Helen Thompson and Chris Bickerton.

The prorogation case has reached the Supreme Court.

• Traditionally the courts are reluctant to second guess political decisions. 
• The high courts of England and Wales ruled that the case wasn’t justiciable. The Scottish court took a different line.
• This case is really looking under the bonnet of the constitution.

If there is no judicial control, the right to prorogue could be abused—this could trouble the courts. 

• But according to the UK constitution, the recourse to the abuse of power is supposed to be political rather than legal. 
• The current executive is a constitutional zombie: it doesn’t have the support of Parliament. 

How does the court see its role? 

• What Boris did may be outrageous, but it’s not clear what he gained by doing it. He squeezed options but he didn’t wipe them out. 
• Maybe they just did it to be provocative ahead of a general election. But neither side can say that.

Who are the justices on the Supreme Court? 

• Most of these people have worked their way up the judicial hierarchy.
• This is only the second time that all 11 are sitting. They know this case is a big deal.
• The big question is legitimacy.

Common law has been seen as a central part of the UK’s constitutional history, and common law ultimately is meant to rest on an appeal to experience. 

• What happens if it is used to assert an abstract principle?

Across the board, politicians are no longer abiding by conventions.

• If Parliament were functioning properly, it would replace the executive.
• Parliament chose to legislate against no deal instead of calling for a general election.
• The Fixed-Term Parliaments act has been a game changer. 

Further Learning: 

• The Talking Politics guide to… the UK Constitution
• The Supreme Court and politics vs. the law
• Who is Lib Dem leader Jo Swinson? 

And as ever, recommended reading curated by our friends at the LRB can be found here: lrb.co.uk/talking

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